American Oversight submitted a FOIA request to the Department of Justice for records concerning why Acting Solicitor General Noel Francisco, who appeared before the Ninth Circuit Jan. 27 to defend President Trump's travel ban, did not sign the government's brief. Prior to becoming Acting Solicitor General, Francisco had been a partner at the law firm of Jones Day, which submitted an amicus brief before the Ninth Circuit on behalf of a business client whose interests were adverse to those of the government. Although Francisco did not sign the government's brief there has been no indication that he recused himself from the case. American Oversight also requested expedited processing. The agency denied the request for expedited processing, but told American Oversight that it would not be able to respond within 20 days. American Oversight then filed suit.Complaint issues: Expedited processing, Adequacy - Search, Failure to respond within statutory time limit, Litigation - Attorney's fees

FOIA Project Annotation: Judge Richard Leon has ruled that American Oversight has not shown that it is entitled to expedited processing for its request to the Department of Justice concerning the ethical implications of the Trump administration's appointment of Noel Francisco as Solicitor General because while American Oversight met DOJ's requirement that the subject of the request be "a matter of widespread and exceptional media interest," it failed to show that Francisco's appointment was a matter "in which there exist possible questions about the government's integrity [that] affect public confidence." Francisco was nominated to be Solicitor General after having served for several months as Acting Solicitor General. While he was Acting Solicitor General, Francisco noticed his appearance in a Ninth Circuit challenge to the Trump administration's travel ban. Two days later, Jones Day, his former firm, filed an amicus brief in the case opposing the government's position. Francisco did not sign the government's brief, but he also did not withdraw from the case. American Oversight then submitted a FOIA request to DOJ for records concerning Francisco's role in the travel ban litigation and ethics issues relating to Francisco's service in the Office of the Solicitor General. American Oversight also requested expedited processing. American Oversight's request for expedited processing was denied because it had not shown that the issues affected public confidence in the government. American Oversight then filed suit. Two weeks later, DOJ disclosed four emails granting Francisco ethics waivers â€" three of which pertained to the travel ban litigation. American Oversight argued that deference was not due to DOJ's interpretation of its expedited processing regulation. Leon disagreed, noting that "although the [agency's declaration] does not chart the origin of DOJ's interpretation, the Department has advanced a similar interpretation of subsection (iv) in several past cases. And in both cases, this District Court accepted and applied the DOJ's interpretation of subsection (iv) to the record before the DOJ at the time of its decision as to the expedited processing request. As such, this is hardly a case in which the Department's 'interpretation was unannounced and would have a negative impact on the rights of affected parties who has no notice of the interpretation.'" Leon added that "the regulation does not ask whether possible questions exist that might or could â€" should they become known â€" affect public confidence in the government's integrity. It asks whether there are possible questions as to the Government's integrity 'that affect public confidence,' full stop. The primary way to determine whether such possible questions exist is by examining the state of public coverage of the matter at issue, and whether that coverage surfaces possible ethics issues so potentially significant as to reduce public confidence in governmental institutions." Leon observed that "in the final analysis, [the agency] correctly concluded that plaintiff had met its burden of showing that there was the necessary media interest concerning [Solicitor] General Francisco's nomination, but that none of the articles raised any ethical issues concerning his nomination, or his work in the Solicitor General's Office, or for Jones Day."
Issues: Expedited processing

SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 05/09/2017)

2017-05-11

5

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/9/2017. Answer due for ALL FEDERAL DEFENDANTS by 6/8/2017. (Attachments: # 1 Certificate of Service)(Cafasso, Cerissa) (Entered: 05/11/2017)

2017-05-11

6

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 5/9/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/9/2017. (See Docket Entry 5 to view document). (znmw) (Entered: 05/12/2017)

2017-05-12

7

NOTICE of Appearance by Aimee Woodward Brown on behalf of All Defendants (Brown, Aimee) (Entered: 05/12/2017)

2017-05-15

MINUTE SCHEDULING ORDER: A hearing on the Motion for Preliminary Injunction 3 is set for 05/30/2017 at 11:30 AM in Courtroom 18 before Judge Richard J. Leon. Defendant's opposition to the Motion is due 05/16/2017. See LCvR 65.1(c). Plaintiff's reply, if any, is due 05/19/2017. Signed by Judge Richard J. Leon on 05/15/2017. (lcrjl2) (Entered: 05/15/2017)

2017-05-16

Set/Reset Deadlines/Hearings: Response due by 5/16/2017. Reply due by 5/19/2017. Preliminary Injunction Hearing set for 5/30/2017 at 11:30 AM in Courtroom 18 before Judge Richard J. Leon. (tb) (Entered: 05/16/2017)

PROPOSED BRIEFING SCHEDULE by U.S. Department of Justice and by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 06/01/2017)

2017-06-02

15

SCHEDULING ORDER: Upon consideration of the parties' Joint Proposed Briefing Schedule, it is hereby ORDERED that this case shall proceed with the following deadlines: Plaintiff's Motion for Partial Summary Judgment on the matter of expedited processing due on or before June 9, 2017. Defendant's opposition brief due on or before June 23, 2017. Plaintiff's reply brief due on or before June 30, 2017. SO ORDERED. Signed by Judge Richard J. Leon on 6/2/2017. (jth) (Entered: 06/02/2017)